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Daily Court Reporter - News Supreme Court of Ohio heard oral arguments this month, including one examining if the usual dosage range for morphine can be applied to fentanyl

 

Supreme Court of Ohio heard oral arguments this month, including one examining if the usual dosage range for morphine can be applied to fentanyl

Kathleen Maloney, Supreme Court of Ohio

The Ohio Supreme Court heard four oral arguments Wednesday, September 13th, including an abortion law dispute involving a statute that requires certain medical facilities to have a transfer agreement with a local hospital for emergencies or medical complication.

Oral Arguments

The four cases considered on Wednesday were streamed live online at sc.ohio.gov and broadcast live on The Ohio Channel.

Summaries Available

Below is a summary of the four arguments heard on Wednesday. Along with the descriptions in this article, the Office of Public Information has released in-depth summaries of the four cases available online at: http://www.courtnewsohio.gov/cases/previews/default.asp#.WJDE73-13x4

State of Ohio v. Mark H. Pountney, Case no. 2016-1255

Eighth District Court of Appeals (Cuyahoga County)

ISSUE:

Because there is no “usual dosage range” for fentanyl, may prosecutors use the dosage range for morphine specified in a standard pharmaceutical reference manual to establish a bulk amount for fentanyl when considering an illegal drug possession charge?

BACKGROUND:

Mark H. Pountney acquired the personal identification information of an elderly man and used the information to intercept 10 prescription patches from a CVS pharmacy. Each patch contained 5,000 micrograms of fentanyl dispensed at a rate of 50 micrograms per hour. Pountney confessed to stealing the patches.

A Cuyahoga County grand jury indicted Pountney on two counts of theft and one count of identity theft, which are fourth-degree felonies. He also was charged with one misdemeanor count of possession of acetaminophen with codeine, and possession of between five and 50 times the bulk amount of fentanyl, a second-degree felony.

In the trial court, Pountney stipulated to being guilty of all counts, but only “partially guilty” of fentanyl possession. He argued the amount he possessed didn’t exceed five times the bulk amount and he wasn’t guilty of a second-degree felony, but rather for possessing an amount that could lead only to a lesser, fifth-degree drug possession charge. State laws regarding drug possession don’t list a usual dose range for fentanyl.

The sole witness at Pountney’s trial was Paul Schad, compliance specialist for the Ohio State Board of Pharmacy, who testified that he was responsible for calculating the bulk amounts of prescription drugs and for compiling the pharmacy board’s Controlled Substance Reference Table. He noted that fentanyl is a “synthetic opiate” used for moderate to severe chronic pain and is 50 to 100 times more powerful than morphine. To calculate the bulk rate, he used the American Hospital Formulary Service reference manual.

For schedule II opiates such as fentanyl, the Revised Code defines “bulk amount” as: “An amount equal to or exceeding twenty grams or five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual of a compound, mixture, preparation, or substance that is or contains any amount of a schedule II opiate or opium derivative.”

Schad testified that because there’s no usual dose range for fentanyl, the range is derived by basing it on the dose range of morphine. He determined from the reference manual that the maximum daily dose of morphine was 180 milligrams. The manual’s conversion table indicated that amount converted into a maximum fentanyl dosage of 50 micrograms per hour per day. That translated into 1,200 micrograms as a maximum daily dose range. A “bulk amount” of five times the daily maximum equals 6,000 micrograms, and because a fentanyl patch contains 5,000 micrograms, Pountney had to be in possession of 1.2 patches to have five times the bulk amount, Schad said. Because the patches can’t be split, a person illegally in possession of two patches would have more than five times the bulk amount of fentanyl. A bulk amount of more than 50 times the daily maximum would equal 300,000 micrograms. Since Pountney possessed 50,000 micrograms, his possession fell between five and 50 times the bulk amount, the prosecution concluded.

The trial court found Pountney guilty on all charges. For sentencing purposes, the four possession charges were merged as allied offenses, and the prosecution sought a sentence based on the fentanyl possession, the most severe of the charges against Pountney. He was sentenced to three years in prison, fined $7,500, and placed on three years of community control. He received an 18-month sentence for identity theft to be served concurrently with the three-year sentence.

Pountney appealed to the Eighth District Court of Appeals. The Eighth District ruled the law, R.C. 2925.01(D)(1)(d), requires the dose range be taken “directly” from a standard reference manual, and not from a separate conversion table produced by the authors of the reference manual. It ruled the state failed to prove beyond a reasonable doubt that Pountney possessed the bulk amount to convict him of a second-degree felony, but instead proved he should be convicted of the fifth-degree possession charge.

The Cuyahoga County Prosecutor’s Office appealed the decision to the Supreme Court, which agreed to hear the case.

Rebecca L. Cyran v. Curtis P. Cyran, Case nos. 2016-1737 and 2016-1870

Second District Court of Appeals (Montgomery County)

ISSUES:

In an appeal from a protection order that has expired, does an exception to mootness apply when the appellant faces possible collateral consequences that may not be ascertainable at the time of the appeal?

Is there a rebuttable presumption that an appeal of an expired protection order isn’t moot?

BACKGROUND:

Curtis Cyran and Rebecca Cyran ended their marriage in 2013, and they shared parenting of their three minor sons.

On June 17, 2015, Rebecca and her fiancé arrived at Curtis’ house to pick up the children. Two of the boys had climbed into Rebecca’s car, but the third son was upset because he couldn’t find his iPod. Rebecca walked back to the house with her son. When he opened the door to the house, Rebecca said Curtis came flying out, grabbed her shoulders, and threw her back, causing her to hit the bushes. She stated that Curtis said, “She’s lucky I didn’t shoot her.”

Rebecca filed a police report and asked a court for a domestic violence civil protection order. Her fiancé and Curtis’ girlfriend each testified at the hearing. The girlfriend said she didn’t see the altercation, but heard Curtis say, “Next time you come in, I’ll shoot you.” The magistrate approved the protection order, and the Montgomery County Common Pleas Court agreed, stating the order would be effective until June 19, 2016.

Curtis appealed the decision in February 2016 to the Second District Court of Appeals, arguing that a protection order can’t be put in place if it’s based on a conditional threat and that the court didn’t have enough evidence to issue the protection order.

The Second District, which issued its ruling on Oct. 14, 2016, didn’t address Curtis’ arguments, however, because the protection order had expired.

“We have consistently held that the appeal of a protection order is moot after the order has expired,” the court wrote.

The court noted, though, that other Ohio appellate courts have recognized exceptions that permit appeals when a protection order has expired. The Second District explained, “Several Ohio courts have relied on case law from [a 2006] Connecticut holding that ‘[c]ollateral consequences can include the effect on one’s credit rating, the ability to drive certain vehicles, the ability to obtain a weapons permit, the ability to obtain employment and the filing of the order in a national registry that is enforceable in 50 states.’”

The Second District concluded that nothing in the Cyran record suggested any negative consequences to Curtis’ current or future employment, his credit rating, or his ability to obtain or renew a driver’s license or acquire a weapons permit. Also, the court noted it found no Ohio law that imposes sanctions on an individual based on an expired civil protection order.

Curtis did raise other potential “collateral consequences,” asserting his ex-wife might try to use the civil protection order to her benefit in their continuing and contentious post-divorce legal battles, but the appellate court rejected the claim as conjecture.

“We will not speculate whether the parties are likely to suffer collateral consequences from an expired domestic relations protection order in unspecified future post-divorce litigation,” the opinion stated. “Without evidence of adverse collateral consequences, this court has no authority to accept hypothetical, unspecified consequences as grounds for an appeal of an expired order.”

Curtis appealed the Second District’s decision to the Ohio Supreme Court, which accepted the case. In addition, the Second District alerted the Court of the conflict among the state’s appellate courts on this issue. The Court agreed to review the conflict as well.

In re R.K., Case no. 2017-0433

Tenth District Court of Appeals (Franklin County)

ISSUE:

In a parental rights termination hearing, does a parent have a right to counsel that cannot be deprived unless the parent has knowingly waived his or her right to counsel, which cannot be inferred by a parent’s unexplained failure to appear at the hearing?

BACKGROUND:

In December 2013, a child identified as R.K. was born and was found to have drugs and alcohol in his system. R.K.’s mother, A.S., attended a March 2014 court hearing where custody of the child was temporarily transferred to Franklin County Children Services, and R.K. was placed in foster care. The children services agency developed a case plan for A.S. to take steps to regain custody of her child.

Additional hearings were held in 2014 and 2015, and the agency retained temporary custody of the child. On Oct. 28, 2015, though, the agency filed a motion in court for permanent custody. A.S. and her lawyer appeared and signed forms to postpone the permanent custody hearings in December 2015, January 2016, and April 2016. The next hearing was scheduled for July 11, 2016.

A.S. did not appear at the July hearing, and her lawyer submitted a request to withdraw as her counsel because she wasn’t present. He told the court that he sent her a letter on June 29, informing her of the hearing time and purpose and indicating that, if she didn’t attend, the court would likely move forward with the case and he planned to withdraw as her attorney. He noted that she responded to his letter on July 5. The trial court granted the lawyer’s request, though the lawyer remained in court in the event that A.S. arrived.

The children services agency presented testimony that some of A.S.’s drug screens tested positive for alcohol, and for cocaine one time, and that she didn’t consistently visit her child, she didn’t complete drug and alcohol treatment, and she lacked steady housing and a stable income. The guardian ad litem, who was appointed by the court to determine what situation was in R.K.’s best interests, also testified that the then 2-year-old child wanted to stay with the foster mother. The trial court granted permanent custody of R.K. to the agency.

Acting pro se, the mother appealed the decision to the Tenth District Court of Appeals, arguing that the trial court didn’t properly determine whether her lawyer’s reasons for ending his representation were appropriate. In her motion to have the court appoint a lawyer to represent her on appeal, she noted that she was in the hospital on the July 2016 hearing date and indicated that she attempted to let the court know that she was under medical care through the hospital and her probation officer.

The Tenth District rejected A.S.’s claim, and she appealed to the Ohio Supreme Court, which agreed to review the issue.

Cleveland Metropolitan Bar Association v. Rosel C. Hurley III, Case no. 2017-0798

Cuyahoga County

ISSUE:

The Ohio Board of Professional Conduct recommends that Cleveland attorney Rosel C. Hurley III be disbarred from practicing law in the state. The board concluded that Hurley, while suspended from practicing law, presented himself as an attorney in a series of letters to employers in which he demanded money as a settlement for alleged employment discrimination.

BACKGROUND:

The Ohio Supreme Court suspended Hurley on an interim basis in March 2013 because he had been convicted of a felony for misusing a law enforcement database to retrieve information about this ex-wife and children while he was an assistant Cuyahoga County prosecutor. In April 2015, the Supreme Court suspended Hurley for two years for this misconduct and for making harassing calls to his former spouse.

Beginning in January 2016, Hurley sent letters to employers alleging that their postings for position openings violated the 1964 federal Civil Rights Act because the ads excluded any applicants with felony convictions. He stated in the letter that such blanket exclusions amounted to employment discrimination with “disastrous effect on individuals such as our client.” He added that “our client” would file an official complaint with the Equal Employment Opportunity Commission (EEOC) unless the employer paid Hurley’s law firm, Arnuma Law, a $500 settlement within 30 days and agreed to change their practices. He signed the letters with “J.D., Esquire.”

Hurley sent these letters to employers in Connecticut, Colorado, Florida, Georgia, Indiana, Maryland, Missouri, Pennsylvania, and Texas that had posted ads on sites such as Craigslist.com, Indeed.com, and ZipRecruiter.com. One employer sent Hurley a $500 check, which he cashed.

The board’s report to the Supreme Court notes that Hurley’s letters didn’t explain that his “client” was actually himself, he was suspended from practicing law, and he wasn’t allowed to represent clients.

Date Published: September 25, 2017

 

Supreme Court of Ohio

 

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